In regard to the contention that the Warrant of committal is bad because it does not show that prisoner is a Chinese subject, it is in the form prescribed by the Ordinance and is I think valid. (See judgment in Wong Ka Cheong, 1, H.K. L.R., at p. 12.) I think I have dealt with all the points of substance which were put forward in Argument.
In my opinion the rule must be discharged, but following the course adopted in re Arton (1896, 1, Q.B.D., at p. 518), we pfo pose to remit the warrant of committal to the Magistrate, expressing the view of the Court that so much of the charge on which the committal was ordered as relates to the crime of embezzlement should be eliminated.
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I Mr. Justice Gompertz (Puisne Judge) delivered a concurring judgment of equal length to that of the Chief Justice. After outlining at some length the facts, he said:-
Now the first criticism I have to make is that the authors of the manifesto never meant apparently to set up a Government independent of the rest of China.
The purpose of the movement is stated to be the impeachment and punishment of Yuan, who is described as contriving te rebel against the Republic and to break up the federation. The solidarity of Kwang- tung with the northern provinces is expressly affirmed. The unity of the Republic is its constant theme. Furthermore, it is pointed out that the word in the manifesto which is translated "Province," essentially and in its true meaning signifies not an independent State, but a territory subordinate to the Republic of China. Similarly the expressione **Tutuh" and "Grand Tutuh" indicate the Governor of a subordinate province and not the head of an independent territory.
Again it is part of the case for the fugitive that Chan assumed the title of Commander- in-Chief of the expedition for punishing Yuan, that he sent telegrams to other provinces, that some other provinces joined the rebellion and that the order issued by him on the Treasury was for money for the payment of rebel troops at Nanking.
On the facts before us it seems clear that the object of the movement in Kwangtung was to get rid of the Provisional President, who was regarded I suppose as hostile to Republican principles and as aiming at despotism There is no evidence whatever of an intention to separate Kwangtun from the other provinces. Again, and thi is very important, whatever their plana ma have been it seems clear that the insurgent never succeeded in establishing an Indepen dent Government or suything like it. I
rebellion has to be successful in order tı attain the dignity of revolution then it i clear that Chan and his followers were neve more than mere rebels.
The movement in Kwangtung at any rat was hopelessly abortive and never got beyonc the stage of a paper rebellion. In 16 day the insurrection in Canton had collapse apparently without firing a shot or striking a blow. Its troops were in fight and it leader & refugee sheltering under foreig flag. On the evidence before us it seem that there was no revolt of the provides a a whole. A party in Canton, apparentl small in numbers and feeble in influence, die desire to turn the President out of office That they achieved a temporary show o success seems due merely to the accident the one of their number was at that time holding the office of Governor of the Province.
Bu
TOT
it was the merest flash in the pan. On the withdrawal of Chan Governor loyal to Peking was at ODC The short appointed by the merchants.
lived revolt had flickered out; but troop from outside did not reach Canton until. week later. Is it possible to hold that som
I